A landmark lawsuit filed Tuesday against Defense Secretary Robert Gates and his predecessor, Donald Rumsfeld, alleges that the military's repeated failures to take action in rape cases created a culture where violence against women was tolerated, violating the plaintiffs’ Constitutional rights.
“There are three types of women in the Army,” says Rebecca Havrilla, a former sergeant and explosive-ordnance-disposal technician. “Bitch, dyke, and whore.” During the four years that Havrilla was on active duty, she was called all three—by fellow soldiers, team leaders, even unit commanders. Once, during a sexual-assault prevention training, the 28-year-old South Carolina native claims, she watched a fellow soldier—male—strip naked and dance on top of a table as the rest of the team laughed. While deployed in Afghanistan, Havrilla spent four months working under a man she alleges bit her neck, pulled her into his bed, and grabbed her butt and waist—on a daily basis. When, on the last day of her deployment, she alleges she was raped by a soldier she considered a friend, it was, she says, “the icing on the cake.”
But Havrilla calls herself lucky: the end of her military commitment was in sight. In other cases, soldiers have had to keep fighting alongside, or even under, the person who assaulted them; been ostracized by their units for reporting an attack; or, as another woman says, simply “shoved to the side.” Havrilla and 16 others are now plaintiffs in a class action suit filed Tuesday against Defense Secretary Robert Gates and his predecessor, Donald Rumsfeld, alleging that their failure to act amounted to a violation of the plaintiffs’ Constitutional rights. The suit, brought by Washington, D.C. attorney Susan Burke, and filed in the Eastern Virginia federal court, charges that despite ample evidence of the problem, both Gates and Rumsfeld “ran institutions in which perpetrators were promoted; … in which Plaintiffs and other victims were openly subject to retaliation… and ordered to keep quiet.” The plaintiffs, in turn, have been “directly and seriously injured by Defendants’ actions and omissions.” “It’s shocking,” the case’s lead investigator, Keith Rohman, tells The Daily Beast. “And it’s just hard to understand why they’ve held off. Families all over America send their young men and women to serve and they do that at tremendous personal risk and danger. But this is not a risk that those families want to assume.”
The problem is not new. It’s been nearly two decades since the notorious Tailhook scandal, in which Navy and Marine Corps officers publicly fondled 87 women at a conference in Las Vegas. But it wasn’t until 2005 that Congress mandated that the Department of Defense form a task force on military sexual assault. The program was charged with developing prevention strategies and tracking data, but in 2008 the Government Accountability Office determined that the task force had spent $15 million, but hadn’t accomplished anything of substance. A handful of other efforts have been made as well, with varying degrees of success.
Meanwhile, the numbers continue to rise. In 2009 reported sexual assaults went up 11 percent, according to Department of Defense statistics, with one in three women reporting having been sexually violated while serving in the military. The Pentagon itself admits that reported incidents probably represent just 20 percent of those that actually occur. Female recruits are now far more likely to be raped by a fellow soldier than killed in combat. But women aren’t the only victims; statistics from the U.S. Department of Veterans Affairs indicate that more than half of those who screen positive for Military Sexual Trauma are men.
“The military is so focused on operational readiness that all these other issues can be labeled ‘minor.’ But the fact of the matter is, it’s destroying the military internally.”
Even when rape cases are reported, the ACLU finds that only 8 percent of them are prosecuted—the civilian system prosecutes 40 percent of alleged perpetrators—and the military trials are often stunningly mishandled. Prosecutors in a case brought by Christine Smith—a civilian who was says that in 2006 she was raped by a man serving in the airborne division—said that they’d lost her underwear, so didn’t introduce it as evidence. But after the soldier was acquitted Smith received a phone call saying she could come retrieve the underwear from the military investigative office.
In such cases, the plaintiff has little recourse. “For lots of reasonable historical bases, the military has a level of civil immunity in our society which is quite high,” investigator Rohman says. “There’s a downside to that: their lack of external accountability means that they have not had to adjust in the way the rest of society has.” In particular, a 1950 Supreme Court ruling, known as the Feres Doctrine, places the military beyond the reach of workplace laws regarding sexual discrimination and sexual harassment. To make matters worse, charges are usually investigated within the immediate chain of command. “There’s no investigatory training. They don’t tell you to look for evidence,” says Greg Jacob, who spent 10 years in the Marines and rose to the rank of captain. Instead, they hand over a manual for courts martial, which explains, among other things, that the investigating officer should consider, first and foremost, “the character and military service of the accused.” Jacob says that essentially means weighing each soldier’s past and future value to the unit. “It’s an HR approach to criminal conduct,” he says. “Military justice imbued me with the ability to be judge and jury. Honestly, I had no idea what to do.”
It was watching the military bungle one such investigation that eventually caused Jacob to leave the service. When a course critique revealed that a senior enlisted marine in his company was systematically assaulting “dozens and dozens” of female trainees, Jacob investigated, got more than 80 corroborations of the behavior, and sent the report up along the chain of command. Less than a week later, the offender was sent to Camp Lejune and subsequently deployed for Iraq. When Jacob asked why he hadn’t been prosecuted, Jacob says he was told, “He’s a good soldier. He just can’t handle an integrated training environment.” In Iraq, the marine was killed, leaving a widow and five children. “If they’d prosecuted him, he would have stayed here and lost some stripes, but not been killed,” Jacob says. “That’s when I decided to get out. I’d been in for ten years. I was a decorated combat Marine. They were going to send me to take a unit to Iraq. But they lost out on all my experience, all the money they’d spent on me. The reach of this problem stretches a long way.” (A spokesperson for the Marine’s Manpower and Reserves Public Affairs office said that she couldn’t comment on individual cases.)
Jacob left the military. Ultimately, Havrilla left as well. Three months after returning to the States she was discharged, having been diagnosed with both combat PTSD and sexual assault PTSD. She’s now living in Missouri and is currently unemployed. She hopes that the lawsuit, and the attention it will receive, will compel the military to start outsourcing sexual assault training. “You’re not going to change hearts and minds overnight,” she says. “Someone who is a misogynistic asshole isn’t going to change their minds because of some PowerPoint presentation. But at that point, at least you can’t claim ignorance. There’s no wishy-washy ‘Oh, it’s just boys being boys.’ If you have a leadership that doesn’t give a shit, nothing’s going to change. It has to start from the top down.” And while the suit seeks significant monetary damages, a payout is neither expected nor entirely the point.
With the country still entangled in two seemingly endless wars, Burke and her team are anticipating criticism. But they and others argue that it’s precisely because we’re at war that the issue is so critical. “The military is so focused on operational readiness that all these other issues can be labeled ‘minor personnel issues,’” says Anu Bhagwati, executive director of the Service Women’s Action Network. “But the fact of the matter is, it’s destroying the military internally.” Rohman adds that the military itself admits that sexual trauma undermines unit cohesion, a critical element of operational success. “If anything, fixing the problem now is more important than ever,” he says. The real question, he adds, is, “If not now, then when?”